People v. McGee, 108603

• Decision Date: 29 November 2018
• Docket Number: 108603
• Citation: 166 A.D.3d 1390,88 N.Y.S.3d 691
• Parties: The PEOPLE of the State of New York, Respondent, v. Russell MCGEE, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1390

88 N.Y.S.3d 691

The PEOPLE of the State of New York, Respondent,

v.Russell MCGEE, Appellant.

108603

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 11, 2018

Decided and Entered: November 29, 2018

Rebecca L. Fox, Plattsburgh, for appellant, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

In satisfaction of two indictments, defendant pleaded guilty to four counts of criminal sale of a controlled substance in the third degree and one count each of criminal possession of a controlled substance in the third degree and criminal possession of a firearm and waived his right to appeal. He was sentenced, as a second felony offender with a prior violent felony offense, in accordance with the plea agreement, to an aggregate prison term of 12 years followed by three years of postrelease supervision. Defendant appeals.

Initially, the People concede, and our review of the record confirms, that the waiver of the right to appeal is invalid, as County Court did not adequately advise defendant that the waiver of the right to appeal is separate and distinct from the rights automatically forfeited by the guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Campbell, 161 A.D.3d 1380, 1380, 73 N.Y.S.3d 767 [2018], lvs denied 32 N.Y.3d 935, 941, 84 N.Y.S.3d 862, 868, 109 N.E.3d 1162, 1168 [2018] ). Nevertheless, given that the record does not reflect that defendant made an appropriate postallocution motion, defendant's challenge to the knowing, voluntary and intelligent nature of the plea is unpreserved for our review (see People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ; People v. Muller, 159 A.D.3d 1232, 1232, 73 N.Y.S.3d 279 [2018] ). Further, we are unpersuaded by defendant's contention that the narrow exception to the preservation requirement applies because the record does not disclose that defendant made any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Muller, 159 A.D.3d at 1232, 73 N.Y.S.3d 279 ; People v. Fay, 154 A.D.3d 1178, 1181, 63 N.Y.S.3d 575 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ).

Defendant also asserts that he received ineffective assistance of counsel. Although the issue is not preserved for our review given the absence of a postallocution motion, we find that the particular circumstances here warrant the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ). The record reveals that, on Monday, March 28, 2016, before defendant entered into the underlying plea agreement, defense counsel brought to County Court's attention a situation that had occurred between him and the prosecutor on the preceding Friday. Although the details of the incident were not placed on the record, defense counsel apologized for his inappropriate conduct and candidly stated that he "let some personal issues override [his] better judgment," that he "should never have said most of the things that [he] said, if not all of the things," and that, "as a result of part of that problem, [he] misconstrued what [defendant] was willing to do relative to the plea offer that was on the table at that time." Defense counsel further expressed the belief that, because of his conduct, a more favorable plea offer that was allegedly available on the preceding Friday was no longer available. In our view, defense counsel fulfilled his professional obligation by immediately bringing his conduct to County Court's attention and seeking to remedy any resulting prejudice to defendant. Thus, on this incomplete record, we cannot conclude, as defendant urges, that defense counsel's vague references to his allegedly prejudicial behavior on the preceding Friday constituted ineffective assistance of counsel.

However, we are nonetheless constrained to reverse the judgment of conviction because County Court failed to take appropriate action in response to defense counsel's disclosures. Initially, County Court failed to recognize that defense counsel's statements disqualified him from continuing to represent defendant, particularly if defense counsel were required to provide testimony regarding the events that allegedly took place on the preceding Friday (see generally People v. Paperno, 54 N.Y.2d 294, 299–300, 445 N.Y.S.2d 119, 429 N.E.2d 797 [1981] ; People v. Rufus, 56 A.D.3d 1175, 1175–1176, 867 N.Y.S.2d 608 [2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] ; People v. Swanson, 43 A.D.3d 1331, 1332, 844 N.Y.S.2d 521 [2007], lv denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 [2007] ). Accordingly, when presented with defense counsel's statements, County Court should have immediately explained the situation to defendant and adjourned the matter to allow for the substitution of counsel.

Following substitution of counsel, County Court should have conducted a hearing to determine whether defendant received the ineffective assistance of counsel during the plea...